"Missoula County Courthouse" by Lance Fisher is licensed under CC BY 2.0

The recent decision by the Montana Supreme Court in the Mountain Water case, in which the Court reversed itself from an earlier decision, has set new precedents that weaken the property rights for all Montanans.  It’s apparent to us that the decision was more politically motivated than grounded in the law—and we’re not alone, Justice Jim Rice described the Court’s conduct as “apparently hell-bent on condemnation” in his dissenting opinion.

This is an example of why Montana’s Supreme Court is ranked so poorly nationally.  Each time it reverses itself—and it does so often, hundreds of times in the last two decades—it creates more uncertainty about what the law really is.  And when the Court is viewed as a political animal—active in creating law rather than just interpreting it—Montanans lose faith that they’ll get a fair shake.

Mountain Water did not get a fair shake.  They were the victim of underhanded, “Machiavellian” legal tactics, to quote Justice Rice, perpetrated by the City of Missoula.  The city spent millions of taxpayer dollars in their effort to condemn and take Mountain Water’s property; the company had to spend millions of their own to defend themselves.

In the end, the Court had to perform legal gymnastics to justify the City’s condemnation.  And in doing so, they weakened the property rights for the rest of us.  And perhaps they’ve emboldened other government entities who’ve got their sights set on taking someone else’s private property.

Specifically, the Supreme Court upheld a lower court’s analysis that favored public ownership as “more necessary” than private ownership in the case.  Justice Rice singled out that presumption in his dissent, pointing out that rather than placing the onus on the City to prove its ownership was “more necessary,” Mountain Water was put in the impossible position of having to rebut this position.

With the high regard that Montana’s Constitution gives to property rights, the presumption should have rested in favor of the property owner, not the other way around.

This is a new precedent that future property owners will surely have to contend with in future eminent domain proceedings.  And it’s one that could make it an uphill battle for them from the start.  Here’s another example of why this year’s Supreme Court election matters so much for Montana property owners.